Supreme Court - Daily Orders
Shri Annappa vs New India Assurance Co. Ltd. on 30 September, 2021
Bench: Hemant Gupta, V. Ramasubramanian
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10329 OF 2010
SHRI ANNAPPA Appellant(s)
VERSUS
NEW INDIA ASSURANCE CO. LTD. & ANR. Respondent(s)
O R D E R
The Order dated 22.02.2010 passed by the National Consumer Disputes Redressal Commission [in short, “the National Commission’] is the subject matter of challenge in the present appeal.
Office Report dated 25.02.2011 shows that service of notice is complete upon the respondents in the matter as duly signed Registered A.D.Cards were received from both the respondents. But no one has entered appearance. Office Report dated 22.09.2021 also shows that service is complete, but no one has entered appearance on behalf of the respondents till date.
The issue in the present appeal is in respect of own damage to the truck of the appellant in an accident which occurred on 02.10.2000. The claim of own damage was repudiated by the Insurance Company on the ground that the vehicle was being used contrary Signature Not Verified to the terms and conditions of the Insurance Policy Digitally signed by Jayant Kumar Arora Date: 2021.10.01 19:37:21 IST Reason: at the time of accident as the vehicle was carrying 25 passengers, which was contrary to the terms of the Insurance Policy.
2The learned District Consumer Disputes Redressal Forum allowed the complaint and directed the Insurance Company to pay Rs. 3,25,000/- with 12% interest per annum. Such order was affirmed by the State Consumer Disputes Redressal Commission. The National Commission allowed the revision of the Insurance Company, holding that carrying of passengers in excess of six persons is in violation of the terms and conditions of the Insurance Policy and, therefore, own damage cannot be granted.
The learned counsel appearing for the appellant refers to a Judgment of this Court in “B.V. Nagaraju Vs. Oriental Insurance Company Ltd., Division Officer, Hassan” reported in (1996) 4 SCC 647, wherein this Court has allowed own damage claim on the similar facts that the truck was carrying more passengers than what was permitted in the terms and conditions of the Insurance Policy. This Court has held as under :-
“7. It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the 3 poser, keeping apart the load it was carrying. Here, it is nobody's case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident……………” The Judgment in Nagaraju (Supra) was referred to by the appellant before the National Commission, but the same was found to be not applicable in view of the previous decision of the National Commission. We find that the view of the National Commission to distinguish the Judgment of Nagaraju (Supra) with the present case is clearly erroneous, as it was a case of own damage and carrying more passengers has not contributed to the accident in any manner.
In fact, the Judgment of this Court in “National 4 Insurance Company Ltd. Vs. Savitri Devi & Ors.” reported in (2013) 11 SCC 554, is a case where the claim on account of death of passengers in a goods vehicle exceeding the permissible limit was upheld. We find that there is a clear distinction between a third-party claim on account of compensation payable to the passenger in the goods vehicle on account of negligence driving of the vehicle whereas the present case is a case of own damage, which is an independent action not dependent upon the number of passengers carried in goods vehicle. In view thereof, we find that the order passed by the National Commission is not sustainable in law. The same is set aside and the order of the State Commission is restored. The appeal is, accordingly, allowed. The amount of compensation be paid within three months from today.
.......................J. [ HEMANT GUPTA ] .......................J. [ V. RAMASUBRAMANIAN ] New Delhi;
SEPTEMBER 30, 2021.
5
ITEM NO.101 COURT NO.11 SECTION XVII-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 10329/2010
SHRI ANNAPPA Appellant(s)
VERSUS
NEW INDIA ASSURANCE CO. LTD. & ANR. Respondent(s)
Date : 30-09-2021 This appeal was called on for hearing today. CORAM : HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE V. RAMASUBRAMANIAN For Appellant(s) Ms. Pooja Srivastava, Adv.
Ms. Manjeet Kirpal, AOR For Respondent(s) UPON hearing the counsel the Court made the following O R D E R The Civil Appeal is allowed in terms of the signed order. Pending interlocutory application(s), if any, is/are disposed of.
(JAYANT KUMAR ARORA) (RENU BALA GAMBHIR) COURT MASTER COURT MASTER
(Signed order is placed on the file)